Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Authority

• Decision Date: 19 May 1994
• Docket Number: No. 09-92-233,09-92-233
• Citation: 876 S.W.2d 940
• Parties: JEFFERSON COUNTY DRAINAGE DISTRICT NO. 6, Appellant, v. LOWER NECHES VALLEY AUTHORITY, Appellee. CV.
• Court: Texas Court of Appeals

Page 940

876 S.W.2d 940

JEFFERSON COUNTY DRAINAGE DISTRICT NO. 6, Appellant, v. LOWER NECHES VALLEY AUTHORITY, Appellee.

No. 09-92-233 CV.

Court of Appeals of Texas Beaumont.

May 19, 1994.

Rehearing Overruled June 23, 1994.

Karl C. Hoppess, Richard P. Hogan, Jr., Holman Hogan, Houston, for appellant.

Hubert Oxford, III, Benckenstein, Oxford & Johnson, Beaumont, for appellee.

Before BROOKSHIRE, BURGESS and WHITHAM ¹, JJ.

OPINION

BROOKSHIRE, Justice.

Appeal from a bench trial. The bench denied Jefferson County Drainage District No. 6's petition for a writ of mandamus. DD6 had filed a cross-claim for a writ of mandamus against LNVA. Procedurally, the appeal is from an "instructed verdict" favoring Lower Neches Valley Authority and from the judgment below.

In the appellant's reply brief, Jefferson County Drainage District No. 6 (DD6) states:

On appellate review, mandamus will issue to correct violation of a duty imposed by law when there is no other adequate remedy at law or to correct a clear abuse of discretion. Strake v. Court of Appeals for the First Supreme Judicial District of Texas, 704 S.W.2d 746, 747 (Tex.1986).

That is the controlling, paramount issue in this appeal. DD6 also maintains:

The court of appeals is charged with making an independent inquiry whether the underlying act, or refusal to act, of the public officer, (and for which act or refusal to act mandamus is sought), is contrary to a clearly established legal duty or rises to the level of a clear abuse of discretion. Anderson, 806 S.W.2d at 793; Strake, 704 S.W.2d at 747 (emphasis theirs).

We have tried to make a full, independent inquiry.

In Strake, ² Justice Wallace wrote: "Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law." (emphasis added). The inquiry to be made by the intermediate court is whether the act, or refusal to act of a public officer is contrary to a clearly established legal duty. In Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex.1991) Justice Hightower, speaking for a unanimous court, wrote:

A writ of mandamus will issue to compel a public official to perform a ministerial act. [Citations omitted] An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. [Citations omitted] Furthermore, a writ of mandamus will not issue to compel a public official to perform an act which involves an exercise of discretion. (emphasis added)

For an act to be considered as ministerial--for mandamus purposes--the law involved must clearly spell out the duty to be performed with sufficient certainty that nothing is left to the exercise of discretion. When considering a question of "clear abuse of discretion", that clear abuse of discretion occurs when a public officer or a public body reaches a decision that is so arbitrary and so unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

Hence, a relator who attacks a ruling of a trial court as an abuse of discretion labors under a very heavy burden. The relator must establish, under the circumstances and factual background of the litigation, that the facts and the law would have permitted the trial court to make but one decision.

The Start of Litigation

This litigation commenced when one Mr. J.B. Clark, being a private landowner and plaintiff, sued the other parties. Clark's lawsuit was settled and his claim was severed, showing that, in practicality, Clark had an adequate remedy at law for money damages. The mandamus action was tried to the bench. After very considerable testimony was heard and after about seven or eight days of trial, the trial judge entered his order granting what was described as an "instructed verdict" against DD6. The "instructed verdict", of course, was in favor of LNVA. We affirm.

A Brief Narration of Background History

In 1920, the Commissioner's Court of Jefferson County was petitioned to form the drainage district that was known locally as DD6. The petition was granted. Beginning at about the year 1943, DD6 and LNVA corroborated in certain projects by agreement. Between 1958 and 1981, by agreement and mutual consent, there had been a cost-sharing basis on several improvements involving several of LNVA's canals--but always on a case-by-case basis. In about 1980, this consensual cooperation largely ceased. After about 1981 to about May of 1985, each project initiated by DD6 was brought before the LNVA on a project-by-project basis--usually a single project or case at a time. Appellant's brief concedes that these projects were done by voluntary agreement of both parties.

Appellant points out that in about 1979 to and through 1980, Beaumont and Jefferson County experienced some unusually heavy rainfalls. Some of the heaviest rain fell in the upper part of Jefferson County. There existed a public consensus for improvements to drainage and improvements to the management of unusually heavy rain water. Certain public hearings were held. At this point, DD6 became involved as a local sponsor of projects to improve the flooding and drainage problems. After consideration by DD6, DD6 selected a standard of a 25 year flood based on the proposition that its main outflow would then be discharged through Taylor's Bayou. This standard would take care of a 25 year frequency storm without creating damage down stream.

The study and the standards used involved three large areas being the Pine Island Bayou Watershed, the Taylor's Bayou Watershed, and the Hillebrandt Bayou Watershed. DD6 had added new watersheds. In summary, DD6 sent a letter to the directors of the LNVA for a commitment of $200,000 a year for five years or six years in order to perform fifteen or sixteen improvements of what was said to be storm and flood drains in and around the canals of LNVA.

The appellant maintains that there was evidence at trial that some of the canals were located on natural drainage areas and these canals impeded the natural flow of the drainage and altered the speed and discharge of certain surface waters within the area of DD6. LNVA responded and agreed to partial participation in two projects only.

DD6's Positions and Contentions

Moreover, as we read the statement of facts one of the attorneys for the appellant conceded that because of certain conditions and circumstances that the court could conceivably issue mandamus against the LNVA to "get its canal out of there" or the court could pick and choose among the fifteen or sixteen requests. This position of DD6 tends to support the basic concept that mandamus would not lie, because if the court could pick and choose which project should be mandated then LNVA had discretion as well. DD6's counsel's statement is substantially this:

I think there's no question that in every instance there has been a case-by-case basis up until May of 1985; and the--and the situation, the frustration that DD6 felt is the same frustration that I feel in the fact that the circumstances are this Court could order all of them, part of them, none of them in--in that regard.

And there are three main issues: Duty and obligation--legal duty and obligation; arbitrary and capricious; and estoppel.... (emphasis added)

[This opinion will address each of these "main issues".]

THE COURT: Well, Mr. Hoppess, let me see if I understand the last thing you said. You're saying that as to each individual crossing--

MR. HOPPESS: Yes.

THE COURT: --that there is a question of whether or not there is--the enabling statute created a duty for this board to do not an individual crossing but whether they have a duty to do crossings in general--

MR. HOPPESS: Correct.

THE COURT: You're saying that I would find that the board was arbitrary and capricious as to individual decisions as to individual crossings?

MR. HOPPESS: Correct.

That concession tends, we perceive, to concede discretion, prudence, and good judgment reposed in LNVA and its board of directors. If the court could pick and choose, then why couldn't LNVA. The bench observed:

And I think the question that you are presenting here is whether or not, in their discretion in carrying out their duties as board members, whether they acted in an arbitrary and capricious manner on this occasion when they were given this particular proposal; ...

And it appears to me that what you are asking me to do does border on going in to fine-tuning of a board. (emphasis added)

LNVA's Factual Contentions

The factual contentions recited by LNVA offers a different context and certainly have a different meaning from the factual position recited by DD6.

LNVA maintains that it is a sub-division and an independent entity of the State of Texas created under the Conservation Amendment of the TEX.CONST. art. XVI, § 59 (Vernon 1993). LNVA operates under a certain enabling legislative enactment being TEX.REV.CIV.STAT.ANN. art. 8280-103 (Vernon 1954), as amended, and operates also under TEX.WATER CODE ANN. § 50.001 et seq. (Vernon 1988 and Vernon Supp.1994). LNVA encompasses Tyler, Hardin, and Jefferson counties and certain portions of other counties and its revenues are derived from the sale of water. The Valley Authority is not authorized to either levy or collect taxes. TEX.REV.CIV.STAT.ANN. art. 8280-103, § 1 (Vernon 1954), as amended. Section 59(b) of article XVI provides that such number of conservation and reclamation districts shall be governmental agencies with the powers of government and the authority to exercise such rights and privileges and functions concerning the subject matter of this amendment as may be conferred by law--obviously legislative statutes. The Texas Water Code § 51.121(b) provides that such a district (as LNVA) organized under article XVI, § 59 of the Texas Constitution may provide for certain...